[Federal Register Volume 69, Number 128 (Tuesday, July 6, 2004)]
[Notices]
[Pages 40642-40645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15243]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Citizenship and Immigration Services

[CIS No. 2314-04]


Termination of the Designation of Montserrat Under the Temporary 
Protected Status Program; Extension of Employment Authorization 
Documentation

AGENCY: Bureau of Citizenship and Immigration Services, DHS.

ACTION: Notice.

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SUMMARY: The designation of Montserrat under the Temporary Protected 
Status (TPS) Program will expire on August 27, 2004. After reviewing 
country conditions and consulting with the appropriate Government 
agencies, the

[[Page 40643]]

Secretary of the Department of Homeland Security (DHS) has determined 
that conditions in Montserrat no longer support the TPS designation and 
is therefore terminating the TPS designation of Montserrat. This 
termination is effective February 27, 2005, six months from the end of 
the current extension. To provide for an orderly transition, nationals 
of Montserrat (and aliens having no nationality who last habitually 
resided in Montserrat) who have been granted TPS will automatically 
retain their TPS and have their current Employment Authorization 
Documents (EADs) extended until the effective termination date. 
However, an individual's TPS shall be withdrawn because of 
ineligibility for TPS, prior failure to timely re-register if there was 
not good cause for such failure, or failure to maintain continuous 
physical presence in the United States. On February 27, 2005, nationals 
of Montserrat (and aliens having no nationality who last habitually 
resided in Montserrat) who have been granted TPS will no longer have 
TPS.

EFFECTIVE DATE: The TPS designation of Montserrat is terminated 
effective February 27, 2005.

FOR FURTHER INFORMATION CONTACT: Colleen Cook, Residence and Status 
Services, Office of Program and Regulations Development, Bureau of 
Citizenship and Immigration Services, Department of Homeland Security, 
425 ``I'' Street, NW., ULLICO Building, Third Floor, Washington, DC 
20536, telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION: What Authority Does the Secretary of DHS 
Have to Terminate the Designation of Montserrat Under the TPS Program?
    On March 1, 2003, the functions of the Immigration and 
Naturalization Service (Service) transferred from the Department of 
Justice to DHS pursuant to the Homeland Security Act of 2002, Public 
Law 107-296. The responsibilities for administering the TPS program 
held by the Service were transferred to the Bureau of Citizenship and 
Immigration Services (BCIS).
    Under section 244 of the Immigration and Nationality Act (Act), 8 
U.S.C. 1254a, the Secretary of DHS, after consultation with appropriate 
agencies of the Government, is authorized to designate a foreign state 
(or part thereof) for TPS. The Secretary of DHS may then grant TPS to 
eligible nationals of that foreign state (or aliens having no 
nationality who last habitually resided in that state).
    Section 244(b) (3)(A) of the Act requires the Secretary of DHS to 
review, at least 60 days before the end of the TPS designation or any 
extension thereof, the conditions in a foreign state designated under 
the TPS program to determine whether the conditions for a TPS 
designation continue to be met and, if so, the length of an extension 
of TPS. 8 U.S.C. 1254a(b)(3)(A). If the Secretary of DHS determines 
that the foreign state no longer meets the conditions for the TPS 
designation, he shall terminate the designation, but such termination 
may not take effect earlier than 60 days after the date the Federal 
Register notice of termination is published. 8 U.S.C. 1254a(b)(3)(B). 
The Secretary of DHS may determine the appropriate effective date of 
the termination for the purpose of providing an orderly transition. 8 
U.S.C. 1254a(d)(3).
    Why Did the Secretary of DHS Decide to Terminate the TPS 
Designation for Montserrat as of February 27, 2005?
    On August 28, 1997, the Attorney General published a notice in the 
Federal Register designating Montserrat under the TPS program based 
upon volcanic eruptions causing a substantial, but temporary, 
disruption to living conditions that rendered Montserrat unable, 
temporarily, to adequately handle the return of its nationals. 62 FR 
45685, 45686 (August 28, 1997). The Attorney General also designated 
Montserrat for TPS due to extraordinary and temporary conditions that 
prevented Montserratians from safely returning to Montserrat. Id. Since 
then, the TPS designation of Montserrat has been extended six times, in 
each instance based upon a determination that the conditions warranting 
the designation continued to be met. See 68 FR 39106 (July 1, 2003); 67 
FR 47002 (July 17, 2002); 66 FR 40834 (August 3, 2001); 65 FR 58806 
(October 2, 2000); 64 FR 48190 (September 2, 1999); 63 FR 45864 (August 
27, 1998).
    Since the date of the most recent extension, DHS and the Department 
of State (DOS) have continued to review conditions in Montserrat. In 
particular, DHS examined whether the conditions remain ``temporary'' as 
required in sections 244(b)(1)(B) and (C) of the Act. 8 U.S.C. 
1254a(b)(1)(B) and (C). Under general rules of statutory construction, 
it is assumed that the legislative intent of Congress is expressed by 
the ordinary or plain meaning of a word. See, e.g., INS v. Cardoza-
Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 
(1984). The plain meaning of ``temporary'' is ``lasting for a time 
only; existing or continuing for a limited time; not permanent.'' 
Webster's Revised Unabridged Dictionary (1998).
    In making a determination, the Secretary of DHS considered country 
condition information provided by DOS and the BCIS Resource Information 
Center (RIC). Although the conditions in Montserrat continue to warrant 
concern, the Secretary has determined that the volcanic eruptions can 
no longer be considered temporary in nature. Scientists say that 
eruptions of the type that have occurred at Soufriere Hills generally 
last 20 years, but the volcano could continue to erupt sporadically for 
decades. RIC Report (May 2004).
    According to the RIC, the July 2003 eruption was the largest 
eruption since the volcano emerged from dormancy in 1995. Id. In 
addition to affecting electricity supplies and telephone service, this 
eruption extensively damaged the island's water supply, agricultural 
sector, and fishery sector. Id. In March 2004, another major eruption 
sent a massive cloud of ash into the air and pyroclastic flows down the 
eastern flank of the Soufriere Hills volcano. Id. Volcanic ash settled 
on the ground up to four inches in places and left coatings of grit on 
surrounding Caribbean islands. Id. At present, fishing boats and other 
marine vessels are barred from entering an international maritime 
exclusion zone that covers a significant portion of the coastline. Id.
    The island remains divided into a northern ``safe zone'' and a 
southern ``exclusion zone.'' Id. The exclusion zone, which is closed to 
the public, covers more than half of Montserrat. Id. As a result, many 
nationals of Montserrat remain unable to return to their homes in the 
southern part of the island. DOS Recommendation (June 8, 2004).
    In addition to the prospect of volcanic destruction, returning 
residents possibly would be subject to contracting the lung disease 
silicosis and other health risks caused by ash that periodically covers 
much of the island. Id.
    The RIC notes that, according to one study, eruptions of the type 
that have occurred at Soufriere Hills generally last 20 years, but the 
volcano could continue to erupt sporadically for decades. RIC Report. 
According to another study conducted by the Scientific Advisory 
Committee on Montserrat Volcanic Activity, there is only a 3.2% chance 
that this period of volcanic activity will stop within the next six 
months. Id. There is a 50% probability that the volcanic activity will 
last another 14-15 years, and a 5% chance that the volcanic activity 
will continue for over 180 years. Id.
    Based upon this review, the Secretary of DHS, after consultation 
with appropriate government agencies, finds that Montserrat no longer 
continues to

[[Page 40644]]

meet the conditions for designation under the TPS program. 8 U.S.C. 
1254a(b)(3)(A). Because the volcanic eruptions are unlikely to cease in 
the foreseeable future, they can no longer be considered ``temporary'' 
as required by Congress when it enacted the TPS statute. 8 U.S.C. 
1254a(b)(1)(B) and (C). Therefore, the Secretary of DHS is terminating 
the TPS designation for Montserrat effective February 27, 2005. 8 
U.S.C. 1254a(b)(3)(B).
    To provide for an orderly transition, nationals of Montserrat (and 
aliens having no nationality who last habitually resided in Montserrat) 
who have been granted TPS will automatically retain TPS and have their 
current EADs extended until the termination date. 8 U.S.C. 1254a(a)(2) 
and (d)(3). These persons are urged to use the time before termination 
of their TPS to prepare for and arrange their departure from the United 
States or, in the alternative, apply for other immigration benefits for 
which they are eligible.

If I Currently Have TPS Through the Montserrat TPS Program, do I Need 
to Re-Register to Keep my TPS until February 27, 2005, the Termination 
Date?

    No. If you already have been granted TPS benefits through the 
Montserrat TPS program, you do not have to re-register to keep your TPS 
benefits. You will automatically retain TPS until the termination date. 
However, your TPS status shall be withdrawn pursuant to section 
244(c)(3) of the Act because of ineligibility for TPS, prior failure to 
timely re-register if there was not good cause for such failure, or 
failure to maintain continuous physical presence in the United States. 
8 U.S.C. 1254a(c)(3), 8 CFR 244.14. When termination occurs on February 
27, 2005, you will no longer have TPS.

Why is the Secretary of DHS Automatically Extending the Validity of 
EADs From August 27, 2004 to February 27, 2005?

    The Secretary of DHS has decided to extend automatically the 
validity of EADs to provide for an orderly transition leading up to the 
effective date for the termination of the Montserrat TPS designation. 
Therefore, the validity of the applicable EADs is automatically 
extended for a period of six months, to February 27, 2005. 8 U.S.C. 
1254a(a)(2) and (d)(3).

Who Is Eligible to Receive an Automatic Extension of His or Her EAD?

    To receive an automatic extension of his or her EAD, an individual 
must be a national of Montserrat (or an alien having no nationality who 
last habitually resided in Montserrat) who has applied for and received 
an EAD under the TPS designation of Montserrat. This automatic 
extension is limited to EADs issued on either Form I-766, Employment 
Authorization Document, or Form I-688B, Employment Authorization Card, 
bearing an expiration date of August 27, 2004. The EAD must also be 
either (1) a Form I-766 bearing the notation ``A-12'' or ``C-19'' on 
the face of the card under ``Category,'' or (2) a Form I-688B bearing 
the notation ``274A.12(A)(12)'' or ``274A.12(C)(19)'' on the face of 
the card under ``Provision of Law.''

Must Qualified Individuals Apply for the Automatic Extension of Their 
TPS-Related EADs Until February 27, 2005?

    No. Qualified individuals do not have to apply for this extension 
of their TPS-related EADs to February 27, 2005 because it is automatic.

What Documents may a Qualified Individual Show to his or her Employer 
as Proof of Employment Authorization and Identity When Completing Form 
I-9, Employment Eligibility Verification?

    For completion of the Form I-9 at the time of hire or re-
verification, qualified individuals who have received an extension of 
their EADs by virtue of this Federal Register notice may present to 
their employer a TPS-related EAD as proof of identity and employment 
authorization until February 27, 2005. To minimize confusion over this 
extension at the time of hire or re-verification, qualified individuals 
may also present to their employer a copy of this Federal Register 
notice regarding the automatic extension of employment authorization 
documentation to February 27, 2005. In the alternative, any legally 
acceptable document or combination of documents listed in List A, List 
B, or List C of the Form I-9 may be presented as proof of identity and 
employment eligibility; it is the choice of the employee.

How may Employers Determine Whether an EAD has Been Automatically 
Extended Through February 27, 2005 and is Therefore Acceptable for 
Completion of the Form I-9?

    For purposes of verifying identity and employment eligibility or 
re-verifying employment eligibility on the Form I-9 until February 27, 
2005, employers of Montserrat TPS class members whose EADs have been 
automatically extended by this notice must accept such EAD if 
presented. An EAD that has been automatically extended by this notice 
will contain an expiration date of February 27, 2005, and must be 
either (1) a Form I-766 bearing the notation ``A-12'' or ``C-19'' on 
the face of the card under ``Category,'' or (2) a Form I-688B bearing 
the notation ``274A.12(A)(12)'' or ``274A.12(C)(19)'' on the face of 
the card under ``Provision of Law.'' New EADs or extension stickers 
showing the February 27, 2005 expiration date will not be issued.
    Employers should not request proof of Montserratian citizenship. 
Employers presented with an EAD that this Federal Register notice has 
extended automatically which appears to be genuine, and appears to 
relate to the employee, should accept the EAD as a valid ``List A'' 
document and should not ask for additional Form I-9 documentation. This 
action by the Secretary of the DHS through this Federal Register notice 
does not affect the right of an employee to present any legally 
acceptable document as proof of identity and eligibility for 
employment.
    Employers are reminded that the laws prohibiting unfair 
immigration-related employment practices remain in full force. For 
questions, employers may call the BCIS Office of Business Liaison 
Employer Hotline at 1-800-357-2099 to speak to a BCIS representative. 
Also, employers may call the U.S. Department of Justice Office of 
Special Counsel for Immigration Related Unfair Employment Practices 
(OSC) Employer Hotline at 1-800-255-8155 or 1-800-362-2735 
(Telecommunications Device for the Deaf or ``TDD''). Employees or 
applicants may call the OSC Employee Hotline at 1-800-255-7688 or 1-
800-237-2515 (TDD) for information regarding the automatic extension. 
Additional information is available on the OSC Web site at http://www.usdoj.gov/crt/osc/index.html.

What may I do if Returning to Montserrat is not Possible or Preferable 
for me?

    This notice terminates the designation of Montserrat for TPS. 
Nationals of Montserrat (and aliens having no nationality who last 
habitually resided in Montserrat) in the United States who believe 
returning to Montserrat is not possible or not preferable for them may 
be eligible to apply for another immigration status, such as Lawful 
Permanent Resident (LPR) or a non-immigrant classification. Eligibility 
for these and other immigration benefits is

[[Page 40645]]

determined individually on a case-by-case basis. For information on 
eligibility and how to apply, visit the BCIS web site at http://uscis.gov or call the BCIS National Customer Service Center at 1-800-
375-5283.
    In addition, nationals of Montserrat are eligible to apply for 
British citizenship based upon their status as British Overseas 
Territory Citizens (BOTCs). As such, nationals of Montserrat have a 
claim to British citizenship, as do all Overseas Territory inhabitants. 
However, unlike all other BOTCs, as of August 28, 1996, the British 
government waived the requirement that nationals of Montserrat wait 
three years after establishing residence in the United Kingdom before 
becoming eligible for social benefits or treatment by the National 
Health Service. This provision is scheduled to remain in place through 
2005, at which time it is slated for review.

How Does the Termination of TPS Affect Nationals of Montserrat who 
Currently Receive TPS Benefits?

    After the termination of the TPS designation of Montserrat becomes 
effective on February 27, 2005, these TPS beneficiaries will maintain 
the same immigration status they held prior to TPS (unless that status 
has since expired or been terminated) or any other status they may have 
acquired while registered for TPS. Accordingly, if an alien held no 
lawful immigration status prior to being granted TPS and did not obtain 
any other status during the TPS period, he or she will revert to 
unlawful status upon the termination of the TPS designation.
    Former TPS beneficiaries will no longer be eligible for a stay of 
removal or an EAD pursuant to TPS. TPS-related EADs will expire on 
February 27, 2005, and will not be renewed.
    Termination of the TPS designation for Montserrat does not 
necessarily affect pending applications for other forms of immigration 
relief or protection, though former TPS beneficiaries will begin to 
accrue unlawful presence as of February 27, 2005 if they have not been 
granted any other immigration status or protection or if they have no 
pending application for certain benefits.

Notice of Termination of Designation of Montserrat Under the TPS 
Program

    By the authority vested DHS under section 244(b)(3) of the Act, DHS 
has consulted with the appropriate Government agencies concerning 
conditions in Montserrat. 8 U.S.C. 1254a(b)(3)(A). Based on these 
consultations, DHS has determined that Montserrat no longer meets the 
conditions for designation of TPS under section 244(b)(1)(B) and 
244(b)(1)(C) of the Act. 8 U.S.C. 1254a(b)(1)(B) and 8 U.S.C. 
1254a(b)(1)(C).
    Accordingly, DHS orders as follows:
    (1) Pursuant to sections 244(b)(1)(B) and 244(b)(1)(C) of the Act, 
the TPS designation of Montserrat will terminate effective February 27, 
2005, six months after the end of the current extension.
    (2) DHS estimates that there are approximately 292 nationals of 
Montserrat (and aliens having no nationality who last habitually 
resided in Montserrat) who currently receive TPS benefits.
    (3) To provide for an orderly transition, nationals of Montserrat 
(and aliens having no nationality who last habitually resided in 
Montserrat) who have been granted TPS under the Montserrat designation 
will automatically retain TPS until the February 27, 2005 termination 
date. However, an individual's TPS shall be withdrawn pursuant to 
section 244(c)(3) of the Immigration and Nationality Act and 8 CFR 
244.14 because of ineligibility for TPS, prior failure to timely re-
register if there was not good cause for such failure, or failure to 
maintain continuous physical presence in the United States.
    (4) TPS-related Employment Authorization Documents that expire on 
August 27, 2004, are extended automatically until February 27, 2005 for 
qualified nationals of Montserrat (and aliens having no nationality who 
last habitually resided in Montserrat).
    (5) Information concerning the termination of TPS for nationals of 
Montserrat (and aliens having no nationality who last habitually 
resided in Montserrat) will be available at local BCIS offices upon 
publication of this notice and through the BCIS National Customer 
Service Center at 1-800-375-5283. This information will also be 
published on the BCIS Web site at http://uscis.gov.

    Dated: June 25, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-15243 Filed 7-2-04; 8:45 am]
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